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Duran v. Hogsten

June 2, 2006

JOSE ISMAEL DURAN, PETITIONER
v.
KAREN HOGSTEN, WARDEN, RESPONDENT



The opinion of the court was delivered by: Judge Muir

(Petition Filed 11/28/05)

ORDER

Jose Ismael Duran, an inmate confined in the Allenwood Low Security Correctional Institution, White Deer, Pennsylvania, ("LSCI-Allenwood"), filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

Duran challenges the Bureau of Prisons' ("BOP") calculation of his federal sentence. He asserts that the BOP has wrongfully commenced his current sentence, and that the date his instant sentence began to run is a date before the date the sentence was imposed.

Because the BOP has computed the petitioner's sentence in accordance with policy and governing law, the petition will be denied.

Background

On October 21, 2003, Duran pled guilty and was sentenced, in two separate cases, in the United States District Court for the Southern District of New York. In Criminal Case No. 83-CR-620, Duran pled guilty to four counts of narcotic charges for offenses which concluded in May and September, 1983. (Doc. No. 6, Ex. 2, p. 3, Judgment). Duran was "sentenced to custody of 18 months, which shall run consecutively to the 6 month term of imprisonment imposed in 03 CR. 913, followed by a 3 year term of special parole, which shall run concurrently with the 3 year term of supervised release imposed in 03 CR. 913." Id. This sentence was completed on August 17, 2004. (Doc. No. 1, Ex. A).

In Criminal Case No. 03-CR-913, Duran pled guilty to a charge of failure to appear. (Doc. No. 6, Ex. 2, p. 5,6 Judgment). He was sentenced to "six months, to run consecutively to the term of prison in 83 CR. 620 (SHS)." Id. This sentence commenced on August 17, 2004.

On September 8, 2004, in Criminal Case No. 04-0200, Duran pled guilty in the United States District Court for the District of New Jersey, to one count of conspiracy to distribute heroin. (Doc. 6, Ex. 2, p. 7, Judgment). This offense conduct occurred in March and April, 2003. Id. Duran was sentenced to "imprison[ment] for a term of 40 Months, to run concurrent to but not limited to the sentence imposed in the SDNY (CR. 83-620 and 03-913)." Id.

The BOP computed these sentences as follows. Duran's 18-month term imposed in Criminal Case No. 83-CR-620, commenced on October 21, 2003, the date on which Duran was sentenced. He received 138 days prior custody credit and the sentence was completed on August 17, 2004. Because this sentence was imposed for conduct which occurred prior to November 1, 1987, the date on which the Sentencing Reform Act was enacted, the sentence had to be computed independently of the other sentences because it was classified as an "Old Law" sentence, and "Old Law" and "New Law" sentences cannot be aggregated. (Doc. 6, Ex. 1, Declaration of Karen Gemberling, Assistant Inmate Systems Manager at LSCI-Allenwood at ¶ 7 and Ex. 2, Program Statement 5880.28, Sentence Computation Manual (CCCA of 1984) July 19, 1999), pp. 1-3, 1-20).

Duran's six month consecutive sentence imposed in Criminal Case No. 03-CR-913 commenced on August 17, 2004, the day the 18-month sentence was completed. The 40-month concurrent sentence imposed in Criminal Case No. 04-0200 was aggregated with the six-month term for computation because both were "New Law" sentences and aggregation was possible. (Doc. No. 6, Ex. 1 at ¶ 8 and Ex. 2, Program Statement 5880.3, Sentence Computation Manual ("Old Law-Pre-CCCA-1984)(July 16, 1993), Ch. VII, pp. 29-30).

Pursuant to 18 U.S.C. § 3885(a)*fn1, Duran's 40-month sentence commenced on September 8, 2004, the day it was imposed. Duran's total sentence was then aggregated pursuant to P.S. 5880.30, which sets forth the formula for aggregating concurrent sentences when an overlap is involved. Pursuant to P.S. 5880.30:

The total length of the aggregate will be determined by adding the length of the first sentence. . . to the overlap of the concurrent sentence. . . .The overlap is determined by finding the difference (exact number of days), between the [expiration full term dates of both sentences.] The overlap is then added to the length of the first sentence. . . for a total sentence for the aggregate.

Id. As a result, Duran's term was of incarceration was computed by adding his 40-month term, or three years, fourth months, with the 22 day overlap between the commencement of the two remaining sentences, specifically, the days between August 17 2004, the commencement of his 6-month sentence and September 8 2004, the date his 40-month term commenced. (Doc. No. 6, Ex. 1 at ¶ 9). Duran's projected release date was then calculated by taking the commencement date of his first sentence, August 17, 2004, and adding the aggregate term of three years, four months and 22 days, for a full term date of January 7, 2008. Id. at ¶ 11. From this full term date, prior custody credit (0 days) ...


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